24/9/14

The Right to Be Forgotten: An Insult to Latin American History

Recently, I was discussing with fellow colleagues from Latin America the implications of the decision of the European Union's Court of Justice that establishes the "right to be forgotten." One of them pointed out that the content of this "right" notwithstanding, the name itself was an affront to Latin America; rather than promoting this type of erasure, we have spent the past few decades in search of the truth regarding what occurred during the dark years of the military dictatorships.

My colleague certainly had a valid argument. If those who were involved in massive human rights violations could solicit a search engine (Google, Yahoo, or any other) to make that information inaccessible, claiming, for example, that the information is extemporaneous, it would be an enormous insult to our history (to put it lightly). However, this seems like an opportune moment to offer a few additional reflections that demonstrate that the hasty discussion being had in the wake of this ruling has much more harmful implications. Given that this "right" has begun to permeate countries of our region in the form of legislative reforms and judicial requests to implement it, I think these reflections could contribute to the global debate.

Let's begin with the ruling itself: the Court of Justice of the European Union passed a sentence this year in which it declared that "[...] the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person's name links to web pages, published by third parties and containing information relating to that person." The Court thereby affirmed what many are referring to as the "right to be forgotten." In reality, it's very important to understand that all the ruling establishes is "the right to not be indexed by a search engine." In other words, the information intended to be forgotten is not erased, but rather remains on the site where it is. The only obligation search engines have is that we not be directed to that site.

Therein lies the first problem for those supporting a "right to be forgotten," which, in reality, does not forget anything. It only exacerbates the existing differences between those who know where to find the information and look for it directly, and those who do not, and therefore need a search engine. Some cannot access information, while many others can.

The second problem is equally grave: the Court of Justice leaves it to private companies that manage the search engines to decide what we are able to encounter in the digital world. Unfortunately, Google -- the primary target of the ruling -- has decided to accept the enormous responsibility of serving as a mechanism for censorship. In fact, news media outlets, including the BBC and the Guardian, have already begun to protest Google's removal of several of their stories in compliance with the "right to be forgotten" laws.

Third problem: there persists the somewhat magical notion that once "right to be forgotten" laws are on the books, information will disappear from the Internet. Bad news: in the digital age, nothing -- or nearly nothing -- disappears. In reality, if a site is not indexed for a search conducted from a computer in the EU, which is what the ruling orders, there is a fundamental asymmetry in information between someone sitting in Madrid searching for a certain piece of information and, say, someone in Bogota administering the same search. This asymmetry generates an unacceptable disparity between this planet's inhabitants.

Information asymmetries, inequality and private censorship are the common denominators of Europe's ruling and of the proposals cropping up from other continents. But if these problems are so easy to detect, why are we even discussing the "right to be forgotten"?

Perhaps we find the answer in what Peter Fleishcher, a lawyer specializing in privacy and advisor to Google, recently posted in his blog: "The 'Right to be Forgotten' is a very successful political slogan. Like all successful political slogans, it is like a Rorschach test. People can see in it what they want."

On the one hand, judges and legislators, perhaps without exhaustively considering the consequences, "see" in this right the need to protect privacy; on the other hand, defenders of freedom of expression, access to information and the search for the truth "see" its disadvantages. Perhaps, the answer is that of Jonathan Zittrain, author of The Future of Internet and How to Stop It. Zittrain suggested that the path forward is probably not a legal right, but rather a structure that permits those who disseminate information to build connections with the subjects of their discussions. In practical terms, that would imply constructing mechanisms for facilitating dialogue between people involved in information management. When people feel wronged by information available about them online, they should be able to contest this information directly, and the search engine itself should have an instrument to enable this process. More information, not less. That way, we can stop discussing the right to be "forgotten," which is misguided in many regards, including for its offensive name.